A killer who had been on death row for 17 years was put to death by lethal injection early today for the murder of an antique-gun collector.
The inmate, Jerry Joe Bird, 54 years old, was pronounced dead at 12:21 A.M., about 12 minutes after the lethal drugs began to flow. He was put to death for the 1974 slaying of a gun collector during a burglary at the man's house in the Rio Grande Valley.
Mr. Bird, who has been on death row since 1974, had earlier been denied a commutation of his sentence or a postponement because of ill health. He had been hospitalized for nearly a week after suffering a stroke on June 9. He was returned on Friday to death row, where he had lived longer than all but one of 345 inmates condemned to death in Texas.
He became the 40th person executed in Texas and the 147th in the nation since the United States Supreme Court in 1976 let states resume use of the death penalty. Texas has had more executions than any state with capital punishment. Court Dissolves Stay
A Federal appeals court Sunday evening cleared the way for the execution when it dissolved a stay granted by a Federal judge earlier in the day. Shortly before midnight the United States Supreme Court refused, 8 to 1, to block the execution. Justice Thurgood Marshall, who opposes the death penalty in all cases, cast the sole vote for a stay.
Mr. Bird mouthed "Hi" to his mother from the death chamber, declined to give a final statement, then said: "That's all. Go ahead. Start things rolling."
Robert White, who was convicted of killing three people during a service station robbery in 1974, has been on death row a month longer than Mr. Bird.
Mr. Bird was put to death for the slaying of Victor Harrell Trammell. According to testimony, Mr. Bird and Emmett L. Korges burglarized Mr. Trammell's home, stole his antique gun collection and shot him, then set fire to the house. Mr. Trammell's wife escaped through a window.
Mr. Bird was convicted in 1974, but that conviction was overturned because of improper comments made by prosecutors in closing arguments. He was retried, convicted and again sentenced to death in 1982. He continued to live on death row even after the first conviction was overturned. Mr. Korges was sentenced to life in prison and died in 1982.
Federal District Judge Ricardo H. Hinojosa had granted a stay Sunday to allow lawyers time to develop arguments that Mr. Bird's lawyers were not allowed to present mitigating circumstances in the punishment phase of his trial.
But a three-member Federal appeals panel unanimously found that the stay was without merit.
Mr. Bird had been convicted of murder in Texas in 1956 and was paroled in 1961 after serving five years.
Jerry Joe Bird,
Petitioner-Appellant,
v.
James A. Collins,
Director, Texas
Department of Criminal
Justice,
Institutional Division,
Respondent-Appellee.
No.
Federal Circuits, 5th Cir.
March 6, 1991
Appeal from the United States District Court for the Southern District of Texas.
Before CLARK, Chief Judge, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:
Jerry Joe Bird appeals from the denial by a United States District Court of his petition for writ of habeas corpus. Bird was convicted of capital murder in October 1977, and sentenced to death by a Texas jury.
The Texas Court of Criminal Appeals affirmed Bird's conviction. Bird v. State, 692 S.W.2d 65 (Tex.Crim.App.1985). This conviction and sentence is his second for this offense. The first conviction was reversed by the Texas Court of Criminal Appeals. Bird v. State, 527 S.W.2d 891 (1975). After exhausting his state remedies, including applications for writ of habeas corpus, Bird filed a federal petition.
Bird's collateral attack of his state court conviction rested on five arguments. He argued that the exclusion of Spanish-surnamed individuals in the selection of a jury violated his equal protection and due process rights, that the decision of his direct appeal by the state court was unduly delayed, that the court erred by admitting testimony given at the first trial by an important witness assertedly unable to testify at the second trial, that the Texas death penalty scheme violates the eighth and fourteenth amendments, and finally that the trial court erred in not submitting the third of the three issues prescribed by the Texas Code of Criminal Procedure for the sentencing phase of capital cases. After full briefing and oral argument, we are persuaded that the denial of habeas corpus should be affirmed for essentially the reasons stated by the district court, with one exception.
The district court, sua sponte, raised and rejected a Penry claim never asserted by Bird. See Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Bird asks that we vacate this ruling, because it assertedly denies him the right to personally develop such a claim, and that we remand the case to the federal district court to allow him that opportunity. He attaches to his brief materials in support of his contention that he would be able to develop evidence that might have been presented at a sentencing hearing, as well as reasons for not doing so. Were we to grant this course, the case would be left in an awkward procedural posture. Bird's Penry claim has not been presented to the state court, so we would be entertaining a petition containing both exhausted and unexhausted claims. Of course, we must dismiss mixed petitions, and that would send Bird and the state to square one. The difficulty here is caused by the district court's action in entertaining a claim that was never raised before. We do not say that a district court lacks the authority to raise claims sua sponte, or that it is never prudent to do so. Rather, we are persuaded that our best course of action in this case is to hew closely to the line of what is properly before us. As we see it, no Penry claims are properly in this case. We therefore vacate the district court's ruling regarding the Penry issues, modify the judgment accordingly, and affirm. This leaves no decision regarding any Penry-type claims Bird might have. We do not decide whether Bird may assert any Penry claims he might have in a subsequent proceeding in state court.
AFFIRMED IN PART, VACATED IN PART.
Jerry
Joe
Bird,
Petitioner-Appellee
Cross-Appellant,
v.
James
A.
Collins,
Director,
Texas
Department
of
Criminal
Justice,
Institutional
Division,
Respondent-Appellant
Cross-Appellee.
No.
Federal Circuits, 5th Cir.
June 17 1991
Appeals from the United States District Court for the Southern District of Texas.
Before CLARK, Chief Judge, and HIGGINBOTHAM and DAVIS, Circuit Judges.
BY THE COURT:
Petitioner presented to the United States District Court for the Southern District of Texas at Brownsville, Texas his second petition for a writ of habeas corpus. See 28 U.S.C. Sec . 2254, et seq. The petition presented four claims for relief. The district court dismissed claims one, two and four but declined to dismiss claim number three.
In claim number three petitioner urged:
"Reliance on appellate courts' 'uniform interpretation' of the Texas capital sentencing statute prevented counsel from investigating, developing, and presenting relevant mitigating evidence in support of a life sentence for Bird."
Petitioner persuaded the district court that claim number three presented a substantial legal question requiring more time for decision. The district court issued a stay of execution and granted a requested certificate of probable cause. Both the State and petitioner appeal.
We are persuaded that the district court properly dismissed claims one, two and four and affirm the dismissal for essentially the reasons stated by the district court.
The district court hesitated over the expressed uncertainty of the Supreme Court in translating the concept of actual innocence to innocence of a death sentence. The district court quoted from Smith v. Murray, 477 U.S. 527, 539, 106 S.Ct. 2661, 2884, 91 L.Ed.2d 434 (1986) that:
We do not undertake here to define what it means to be "actually innocent" of a death sentence.... Demonstrating that an error is by its nature the kind of error that might have affected the accuracy of a death sentence is far from demonstrating that an individual defendant probably is "actually innocent" of the sentence he or she received. The approach taken by the dissent would turn the case in which an error results in a fundamental miscarriage of justice, the "extraordinary case," [Murray v. ] Carrier, supra, 477 U.S. at 496, 106 S.Ct. [2639], at 2650, [91 L.Ed.2d 397 (1986) ], into an all too ordinary one.
We recently acknowledged this uncertainty in Cuevas v. Collins, 932 F.2d 1078 (5th Cir.1991). However we also concluded that whatever may be the "extraordinary" level of Penry type evidence not given expression under the question of deliberateness and future dangerousness sufficient to render a petitioner "actually innocent" of a sentence as opposed to error that "might have affected [its] accuracy", it was not presented by Cuevas. We reach the same conclusion here.
The stay of execution is vacated and the certificate of probable cause vacated. Our ruling is upon the merits of the case. See Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983).
AFFIRMED IN PART AND REVERSED IN PART.